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BORMANN v. LONG ISLAND PRESS PUBL. CO.

August 5, 1974

Nancy BORMANN, Individually and on Behalf of all others similarly situated, Plaintiff,
v.
LONG ISLAND PRESS PUBLISHING CO., INC., et al., Defendants


Bruchhausen, Senior District Judge.


The opinion of the court was delivered by: BRUCHHAUSEN

BRUCHHAUSEN, Senior District Judge.

The complaint alleges that the defendants have violated the provisions of Title VII of the Civil Rights Act of 1964, and the Equal Pay Act of 1963. In substance it charges sex discrimination policies in hiring and employment practices. It also seeks a class action determination under Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.

 Thereafter the defendants moved for an order, pursuant to Rules 12(b)(1) and 12(b)(6), dismissing the complaint on the grounds of lack of jurisdiction of the subject matter and further that it fails to state a claim upon which relief can be granted.

 The plaintiff then moved for an order declaring that the within action be maintained as a class action.

 The plaintiff was hired by the defendant, Long Island Press Publishing Co., Inc., as an editorial assistant, commencing November 17, 1969. Approximately six months later she inquired of promotional possibilities because she was doing work of a reporter. She was allegedly informed on June 24, 1971 that she was not qualified to be a reporter, and if she persisted in her quest for a promotion, she would be fired. She thereafter on June 29, 1971 filed a complaint with the Equal Employment Opportunity Commission (E.E.O.C.), alleging job discrimination. She also filed a complaint with the New York State Division of Human Rights. An investigation was instituted and the said Division issued a finding of no probable cause. She was immediately fired from her position by the defendant. On August 2, 1971, she filed a new complaint alleging retaliatory firing. Further investigation was commenced and on January 25, 1972, a finding of no probable cause was issued, and she appealed to the Human Rights Appeal Board. The Board reversed and on April 3, 1972 issued a finding of probable cause. The defendant then appealed to the Appellate Division of the Supreme Court of the State of New York, and on November 26, 1973 it reversed the decision of the Appeal Board and reinstated the decision of the New York State Division of Human Rights. 43 A.D.2d 591, 350 N.Y.S.2d 356. Thereafter on January 17, 1974, she received a right to sue letter from E.E.O.C.

 The defendant urges that the statute of limitations time bars any claim pursuant to the Equal Pay Act of 1963. The statute involved is 29 U.S.C. § 255. A cause of action arising under the Fair Labor Standards Act must be commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.

 In the case at bar, the defendant urges the two year limitation protection, and the plaintiff urges the three year exception because of a willful violation of the Act. The Court cannot decide this issue of willfulness, if any, without first taking appropriate proof in open court. Therefore, the Court will defer any such ruling until such proof, if any, is presented during the trial.

 Secondly, the defendant urges that jurisdiction is lacking because, pursuant to Title VII of the Civil Rights Act of 1964, the issuance of a "right-to-sue" letter was lacking and the Commission delegated to its District Directors, its authority to issue a "right-to-sue" letter, effective March 18, 1974.

 In Stebbins v. Continental Insurance Companies, 143 U.S.App.D.C. 121, 442 F.2d 843 (1971), the Court held in part at page 845:

 
"* * * We therefore agree with the prevailing view that, in the absence of special circumstances, the notice of right to sue is a jurisdictional prerequisite to suit."

 In Shaffield v. Northrop Worldwide Aircraft Services, Inc., D.C., 373 F. Supp. 937, decided March 21, 1974, the Court held in part at page 940:

 
"* * * The jurisdictional issue, then, is whether this case should be dismissed for lack of jurisdiction because the EEOC is later found to have inadvertently failed to delegate the power to issue suit letters. The spirit and history of Title VII demand that such result be rejected. 'To deny relief under these circumstances would be a meaningless triumph of form over substance.' Choate v. Caterpillar Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968). "Our polestar in this analysis should be the fundamental principle of Title VII that procedural niceties should not be used to impede a claimant in his quest for a hearing on the merits of his case. Burns v. Thiokol Chem. Corp., 483 F.2d 300, 305 (5th Cir. 1973); Sanchez v. Standard Brands, 431 F.2d 455, 465 (5th Cir. 1970)."

 In the case at bar, the plaintiff complied with every step provided in the Act. She filed a complaint with the E.E.O.C. together with the New York State Division of Human Rights and finally received a "right-to-sue" letter upon her request, Exhibit E, attached to the complaint, and thereupon brought suit in ...


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